By MOLLIE ZIEGLER
Two former counterterrorist operatives — a Defense Department employee and a contractor — are suing the department for denying them access to lawyers during closed congressional hearings and official investigations. The lawsuit, which also accuses the department of retaliation for whistleblowing, seeks unspecified damages.
Anthony Shaffer, a Defense Intelligence Agency employee, and J.D. Smith, a former data analyst for Defense contractor Orion Scientific Systems, who filed the suit, were part of an elite, secret group of intelligence officers and contractors tasked with identifying al-Qaida members and organizations years before the Sept. 11 terrorist attacks. Their task force, known as Able Danger, uncovered a New York-based terrorist cell headed by Mohamed Atta, who later was found to be the mastermind of the Sept. 11 attacks, according to the lawsuit. The group used advanced software programs to dig through public Internet data and link it to classified data in order to identify information about terrorists.
Shaffer, and the Able Danger team leader, Navy Capt. Scott Phillpott, told Sept. 11 investigators they identified several hijackers prior to the attacks, according to the lawsuit. Shaffer attempted to set up meetings with the FBI to discuss the information, and potentially develop a criminal case against the terrorist cell. However, the Special Operations Command in charge of Able Danger prevented the information from being disclosed, possibly out of concern that doing so would violate restrictions against military involvement in domestic law enforcement, Shaffer claimed in the lawsuit. In fact, the program was shut down in 2000 and DIA destroyed Able Danger files by spring 2004.
Two years after the attacks, Shaffer and others involved with Able Danger shared this information with members of the 9/11 Commission, the nonpartisan panel set up by Congress to investigate how the government failed to thwart the attacks. Two months after he notified his Defense Intelligence Agency bosses of his disclosure, Shaffer, a 22-year veteran of the intelligence community currently on paid administrative leave, had his security clearance suspended and later revoked. He claimed this was retaliation for his speaking to the commission.
Request for counsel denied
Since spring 2005, Shaffer has briefed Senate and House committees and their staff on the Able Danger operation and the alleged retaliation he suffered for revealing information about it. On Aug. 30, Shaffer requested Mark Zaid, his Washington lawyer, be permitted access to classified information so he could represent him during a classified hearing before the Senate Judiciary Committee in September. The request was denied, and a few days before the hearing, the Defense Intelligence Agency revoked Shaffer’s security clearance amid claims he engaged in criminal conduct and was not credible. The lawsuit claims the revocation was in retaliation for his discussing the Able Danger program with the 9/11 Commission and Congress.
On Feb. 2, Shaffer requested, unsuccessfully, that his attorney get access to classified information before he was to appear before a closed-door hearing for two House Armed Services subcommittees. Shaffer testified Feb. 15 about the Able Danger program. Also, both Shaffer and Smith were interviewed about the operation by the Defense Department’s inspector general office. Counsel for the men was not permitted to be present for the questioning. They both needed lawyers at hearings and investigations because Defense officials have called their testimony into question, the lawsuit says.
“It is outside the realm of common sense to not want to protect oneself,” Zaid said.
Able Danger details revealed
This lawsuit marks the first time the dramatic claims surrounding the Able Danger program have been made in court, including:
• Able Danger was created as a result of a directive by Hugh Shelton, President Clinton’s Joint Chiefs of Staff chairman, in 1999. The purpose was to develop information against terrorism, specifically al-Qaida.
• Mohamed Atta and three other hijackers were identified as a member of an al-Qaida terror cell, more than a year before Sept. 11.
• Able Danger team leader Phillpott told the 9/11 Commission about the group’s findings. No mention of Able Danger is found in the 9/11 Commission’s final report.
Shaffer and Smith’s claims contradict the official conclusion of the 9/11 Commission that American intelligence agencies had not identified Atta as a potential terrorist prior to Sept. 11.
The suit, filed Feb. 27 in the U.S. District Court of the District of Columbia, names the Defense Department, Defense Intelligence Agency, Army and four individuals, including DIA General Counsel George Peirce, Defense General Counsel William Haynes and Army Senior Deputy General Counsel Tom Taylor as defendants.